The Paycheck Fairness Act now under consideration by the Senate’s Health, Education, Labor and Pensions (HELP) Committee was introduced by then-Senator Hillary Clinton in January 2009. The House of Representatives approved its version shortly thereafter, and now, after a long hibernation, it has roared back to life in the Senate more than a year later.

For employers,  it probably should’ve stayed in hibernation since it imposes costly new requirements both to comply and to defend themselves should they end up in court.

The Paycheck Fairness Act seeks to add teeth to the Equal Pay Act (EPA) of 1963, which made it illegal to pay women less than men for doing substantially the same work.

The Kennedy-era EPA entitled victims of gender discrimination to recover liquidated damages–basically twice what was lost in wages by the act of discrimination–but it also gave employers and their lawyers a neat loophole by allowing defendants to claim their decision was based on "a factor other than sex."

The Paycheck Fairness Act throws out "a factor other than sex" while at the same time adding the potential for unlimited punitive and compensatory damages–a real trial lawyers’ boon.

Further, it imposes costly new record-keeping obligations on employers to maintain and submit data each year to the EEOC (Equal Employment Opportunity Commission, which is charged with enforcing anti-discrimination laws) concerning job titles, duties, pay, gender and so on.

Employers, you probably already know that the greatest number of employment-related complaints that end up in court are those based on discrimination, so you must be careful in both your decision-making on job duties and pay and in keeping proper records. Get a copy of Personnel Concepts’ Fair Pay Discrimination Compliance Kit today and follow its guidance to stay attuned to the law–and out of court.